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TSCA draft is out - radical changes may be coming

Sen. Frank Lautenberg (D.N.J) has introduced a bill to comprehensively reform the Toxic Substance Control Act of 1976 (TSCA). Lautenberg's Bill is titled the Safe Chemicals Act of 2010. The Bill is 169 pages long and demands careful analysis. However, on a first reading it appears radical and impractical changes are being proposed. For example:

The Bill discards TSCA's risk-based approach for the European "precautionary principle." The Bill states all chemicals "[must] meet a risk-based safety standard that protects vulnerable and affected populations and the environment" and that companies "at all times, bear the burden of proving of proving" compliance with the "applicable safety standard."

The "safety standard" is "reasonable certainty of no harm," which in turn is defined as "a negligible risk of any adverse effect on the general population or a vulnerable population." The term "negligible risk" is not defined. "All" chemical substances in commerce must meet this standard.

On the one hand, the Bill requires every safety standard compliance determination to be "supported by an assessment of risk conducted by an [EPA] employee or contractor..." On the other hand, no risk assessment is required to deny compliance certification.

The Bill grants EPA total and unfettered discretion. It explicitly (and likely illegally) exempts EPA's determination that a company has failed to prove "safety" from judicial review. EPA is judge, jury, and executioner.

The Bill does not preempt more restrictive State requirements.

The Bill expands EPA control over nanomaterials by doing away with the "molecular identity" test.

The Bill does away with business confidentiality, requiring all TSCA-related studies must be made public as part of a "registry of all health- and safety-related studies" and mandating disclosure to EPA "and the public...the sources of any funding used for the conduct or publication of the study received by the researchers who conducted the study."

The Bill needs substantial work. To begin with, it is poorly drafted. Key, threshold terms are undefined (e.g., the "safety standard" is "negligible risk" - what on earth is this?), and there is a distressing lack of attention paid to the practical impact of its more radical and far-reaching provisions (e.g. has anyone out there considered the practical difficulties of requiring "all chemicals in commerce" to receive EPA approval while at the same time providing only those chemicals for which EPA has completed a formal risk assessment may be?).

The good news is that Congressmen Henry Waxman and Bobby Rush have said they plan to introduce a "discussion draft" and conduct "stakeholder outreach" before introducing a formal House Bill. Also, Congress is occupied with other things at the moment (Supreme Court nominations, the economy, the energy bill, the November elections, etc.). Therefore, there is reason to hope the more problematic provisions of the "Safe Chemicals Act of 2010" will be reconsidered and recast as the legislative process moves forward.